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HIRE CONTRACT CONDITIONS – ATLANTIC RENTALS PTY LIMITED

 

NOTE TO CUSTOMER

 

You should read these Hire Contract terms very carefully. They contain terms and conditions which may impact on you, including that;

  1. the liability of Atlantic Rentals to its Customers is excluded in some circumstances; and

  2. Customers may be liable for damage to goods that are hired by them; and

  3. Atlantic Rentals’ Privacy Policy permits Atlantic Rentals in some circumstances and subject to compliance with the Australian Privacy Principles to provide data about a Customer, or data provided by a Customer, to a third party in a form that may enable the third party to identify the Customer.

 

These Hire Contract Conditions apply to the exclusion of any other conditions proposed by the Customer, unless otherwise agreed by Atlantic Rentals and the Customer in writing.

Atlantic Rentals agrees to hire Equipment to the Customer on terms set out in this document. If the Customer wishes to hire Equipment, Atlantic Rentals will issue to the Customer a Hire Schedule, setting out the terms of the hire of that Equipment. Each Hire Schedule is not a separate contract but forms a part of this hire agreement between Atlantic Rentals and the Customer, together with any credit application, guarantee and indemnity or other contractual documents. The Customer agrees to receive hire schedules and all associated documentation by electronic means, or by printed or other form where electronic means are not available. The Customer must check the Hire Schedule on receipt and unless the Customer notifies Atlantic Rentals before collection of the Equipment that it disagrees with anything in the Hire Schedule, the terms of the Hire Schedule are accepted by the Customer. Atlantic Rentals may in its absolute discretion decline to hire Equipment to the Customer at any time if it has reasonable cause to do so.

 

Amendment: These Hire Contract Conditions may be changed by Atlantic Rentals from time to time by Atlantic Rentals giving notice of the amendment to the Customer. Notice is deemed given when Atlantic Rentals does any of the following:

  1. sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer;

  2. publishes the amended terms on its website or

  3. displays the amended terms at premises from which Atlantic Rentals conducts hire operations.

Changes to these Hire Contract Conditions will only apply to Hire Schedules entered into after the change has been notified to the Customer by one of the methods mentioned above.

  1. INTERPRETATION OF WORDS IN THIS CONTRACT;

COMMENCEMENT – The date when the Customer takes possession of the Equipment.

EQUIPMENT – Means any kind of equipment, vehicles or tools including but not limited to the following kinds of goods or goods suitable for the following kinds of uses: cleaning; cooling and/or heating; entertainment; waste management; landscaping and gardening: plumbing: fencing and covering: lifting: access; air and air compression; pumping and fluid management; welding; compaction; concrete and masonry; flooring; earthmoving; floor care and cleaning, generation and power distribution; ground equipment and shoring; ladders and scaffolding; propping; lighting; materials handling; offshore pumps; safety equipment; storage; site accommodation including portable buildings and portable toilets; traffic management including road barriers; signage; vehicles including trucks, vans and trailers, and includes tools and parts and accessories for any of the foregoing.

CUSTOMER – refers to the person, firm, organisation, partnership, corporation or other entity (including trust) hiring the Equipment from Atlantic Rentals as identified in the Credit Application or Hire Schedule.

HIRE CHARGE – The amounts shown on the Hire Schedule payable by the Customer to hire the Equipment.

HIRE PERIOD – Means from Commencement until the end of the period shown on the Hire Schedule. The Hire Period may only be extended for one or more definite periods and in each case this can only be done if the Customer requests it and if Atlantic Rentals agrees. Atlantic Rentals may issue an amended Hire Schedule for any extension of the Hire Period.

HIRE SCHEDULE – Means a document in such form as Atlantic Rentals shall require, setting out the terms of the hire of Equipment, including the particulars of the Equipment and the Hire Period and such other information as Atlantic Rentals may decide to include.

ATLANTIC RENTALS – The company or companies listed on the Hire Schedule.

KILOMETRE CHARGE – The amount payable for the kilometres that a Motor Vehicle has, in the reasonable opinion of Atlantic Rentals, travelled during the Hire Period.

MOTOR VEHICLE – A truck or utility but not any other equipment such as a scissor lift, trailer or skid steer loader.

REMOTE AREA – Any location which is more the 50 kilometres from the Atlantic Rentals branch from where the Equipment is hired.

 

2. ATLANTIC RENTALS OBLIGATIONS

Atlantic Rentals will:

2.1 Allow the Customer to take and use the Equipment for the Hire Period;

2.2 Provide the Equipment to the Customer clean and in good working order;

2.3 Collect the Equipment within five days of being requested to do so by the Customer and issuing to the Customer a Customer Pick Up Number.

NOTE TO CUSTOMER: You must return the Equipment at your expense when due back unless you obtain a Customer Pick Up Number from Atlantic Rentals.

 

3. OBLIGATIONS OF THE CUSTOMER

The Customer must:

3.1 Deliver the Equipment to Atlantic Rentals when it is due back;

3.2 Return the Equipment to Atlantic Rentals clean and in good repair;

3.3 Satisfy itself at Commencement that the Equipment is suitable for its purposes;

3.4 Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by Atlantic Rentals or posted on the Equipment.  This includes the Customer providing any person using or operating the Equipment with appropriate and prudent safety clothing and equipment and all manuals and instructions (written and oral) for the safe operation of the Equipment;

NOTE TO CUSTOMER: You MUST advise Atlantic Rentals if you require any further instruction on the operation and safe use of the Equipment.

3.5 Indemnify Atlantic Rentals for all injury and/or damage to the extent caused or contributed to by the Customer to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all liabilities incurred as a result of the use of the Equipment;

3.6 Ensure that any person collecting or taking delivery of Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised;

3.7 Ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed;

3.8 Conduct a thorough hazard and risk assessment before using the Equipment and comply with all Occupational Health and Safety laws relating to the Equipment and its operation;

3.9 Safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, and indemnify Atlantic Rentals in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer operated by or on behalf of the Customer;

3.10 Operate the Equipment with an adequate motor vehicle and/or power source;

3.11 Report and provide full details to Atlantic Rentals of any accident or damage to the Equipment within two business days of the accident or damage occurring;

3.12 Sign any documentation requested by Atlantic Rentals at such intervals as reasonably stipulated by Atlantic Rentals, to confirm the Customer’s acceptance of these Hire Contract Conditions;

3.13 At it’s own expense, clean, fuel, lubricate, check water and oil and keep and return the Equipment in good and substantial repair and condition, provided that the Customer shall not undertake any repairs or servicing (except that identified in the foregoing) and if any repair of servicing appears necessary of desirable, the Customer shall advise Atlantic Rentals immediately, initially by telephone and forthwith thereafter in writing (preferably by email). Pre-arranged major servicing will be carried out by Atlantic Rentals during normal working hours;

3.14 Accept full responsibility for all flat and / or damaged tyres or tracks;

3.15 Accept full responsibility for the safekeeping of the Plant

3.16 Forthwith on request by Atlantic Rentals advise Atlantic Rentals of the whereabouts of the Equipment and allow Atlantic Rentals (it’s agents, servants or contractors) to inspect and test the Equipment and for such purposes the Customer hereby gives irrevocable consent and licence to Atlantic Rentals (it’s servants agents and contractors) to take possession of and remove the same and as agent of the Customer, enter upon any premises where the Equipment or any part of the same may be;

The Customer must NOT;

3.17 Tamper with, damage or repair the Equipment;

3.18 Lose or part with possession of the Equipment;

3.19 Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract;

3.20 Allow any person to drive a Motor Vehicle if the person:

  1. does not hold a suitable licence to drive that class of Motor Vehicle; or

  2. is affected by drugs and/or alcohol.

3.21 Exceed the recommended or legal load and capacity limits of the Equipment;

3.22 Use or carry any illegal, prohibited or dangerous substance in or on the Equipment;

3.23 Exceed the recommended or legal speed limit for the Equipment.

 

4 PAYMENTS BY THE CUSTOMER TO ATLANTIC RENTALS

4.1 On or before Commencement (or as otherwise specifically agreed with Atlantic Rentals), the Customer will pay the Hire Charge.

4.2 Immediately on request by Atlantic Rentals, the Customer will pay:

  1. the new list price, or replacement value, of any Equipment which is for whatever reason not returned to Atlantic Rentals

NOTE TO CUSTOMER: Subject only to any express provision of this Contract to the contrary, the Customer is responsible for loss or theft of the Equipment.

  1. all costs incurred in cleaning the Equipment;

  2. the full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise in this Contract;

  3. stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of this Contract or arising from the Customer’s use of the Equipment;

  4. all costs incurred by Atlantic Rentals in delivering and recovering possession of the Equipment;

  5. Interest for late payment of amounts owing by the customer, at the pre-judgement interest rate set by the Local Court of NSW from time to time;

  6. the Kilometre Charge in excess of 100km per day and any additional Hire Charges;

  7. the cost of fuels and consumables provided by Atlantic Rentals and not returned by the Customer;

  8. any reasonable expenses and legal costs (including commission payable to a commercial agent) incurred by Atlantic Rentals in enforcing this Contract due to the Customers default;

  9. pay to Atlantic Rentals all or any costs and expenses incurred enforcing Atlantic Rentals’ rights and the Customer’s obligations hereunder including, but not limited to, any cheque fees, any legal fees and disbursements incurred by Atlantic Rentals for any court proceedings taken against the Customer by Atlantic Rentals;

  10. all costs of repairing or replacing flat / damaged tyres or tracks, including road service;

  11. if any damage and/or theft waiver applies, the amount for which the Customer is liable as set out in this Contract; and

  12. Loading costs when equipment hired with an hour meter is used in excess of 8 hours per day.

4.3 Without limiting the ability of Atlantic Rentals to recover all amounts owing to it, the Customer authorises Atlantic Rentals to charge any amounts owing by the Customer to any credit card or account details of which are provided to Atlantic Rentals.

4.4 Atlantic Rentals may tokenise the Customers Credit Card or Account details to facilitate credit card or online payments.

 

5 PPS LAW

5.1 This clause applies to the extent that this Contract provides for a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”). References to PPS Law in this agreement include references to amended, replacement and successor provisions or legislation.

5.2 Atlantic Rentals may register its security interest. The Customer must do anything (such as obtaining consents and signing documents) which Atlantic Rentals requires for the purposes of

  1. ensuring that Atlantic Rentals’ security interest is enforceable, perfected and otherwise effective under the PPS Law;

  2. enabling Atlantic Rentals to gain first priority (or any other priority agreed to by Atlantic Rentals in writing) for its security interest; and

  3. enabling Atlantic Rentals to exercise rights in connection with the security interest.

5.3 The rights of Atlantic Rentals under this document are in addition to and not in substitution for Atlantic Rentals’ rights under other law (including the PPS Law) and Atlantic Rentals may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt about it Atlantic Rentals security interest will attach to proceeds.

5.4 To the extent that Chapter 4 of PPSA applies to any security interest under this agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires Atlantic Rentals to give a notice to the Customer); section 96 (retention of accession); section121(4) (notice to grantor); section125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires Atlantic Rentals to give a notice to the Customer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).

5.5 The following provisions of the PPS Law: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral) confer rights on Atlantic Rentals. Customer agrees that in addition to those rights, Atlantic Rentals shall, if there is default by Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that Atlantic Rentals may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

5.6 The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.

5.7 Atlantic Rentals and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to Atlantic Rentals the benefit of section 275 (6)(a) and Atlantic Rentals shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.

5.8 Customer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment other than with the express written consent of Atlantic Rentals.

5.9 Customer must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else unless Atlantic Rentals (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to Atlantic Rentals and must be expressed to be subject to the rights of Atlantic Rentals under this agreement. Customer may not vary a sub-hire without the prior written consent of Atlantic Rentals (which may be withheld in its absolute discretion).

5.10 Customer must ensure that Atlantic Rentals is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.

5.11 Customer must take all steps including registration under PPS Law as may be required to:

  1. ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;

  2. enabling the Customer to gain (subject always to the rights of Atlantic Rentals) first priority (or any other priority agreed to by Atlantic Rentals in writing) for the security interest; and

  3. enabling Atlantic Rentals and the Customer to exercise their respective rights in connection with the security interest.

 

6 EXCLUSION OF WARRANTIES AND LIABILITIES.

6.1 Where the Australian Consumer Law applies, the Customer has the benefit of guarantees in relation to the hire of the Equipment which cannot be excluded.

6.2 Where the Australian Consumer Law applies and the goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, Atlantic Rentals liability in respect of any guarantee is limited to the replacement or repair of the goods, or the cost of having the goods repaired or replaced.

6.3 To the extent that the Australian Consumer Law (or any other law which cannot be excluded) does not apply. Atlantic Rentals makes no representations and gives no warranties other than those set out in these Hire Contract Conditions, and will not be liable to the Customer for any damages, costs or other liabilities whatsoever (including for consequential loss) in relation to the hiring of the Equipment by the Customer.

 

7 REMOTE HIRE

Where the Equipment is at any time hired by the Customer to be located in the Remote Area, the following clauses will also apply, in addition to the obligation of the Customer under Clause 3 and elsewhere in these Hire Contract Conditions:

  1. The Customer will pay an additional charge for any delivery, servicing and repair of the Equipment, and for any other attendance at the Remote Area by Atlantic Rentals (‘Remote Area Charges’). The Remote Area Charges will be calculated on a per kilometer rate travelled by Atlantic Rentals staff to and from the Remote Area, plus labour costs per staff member per hour (including travelling times) at scheduled rates, plus direct travelling cost including all airfares and accommodation charges incurred by Atlantic Rentals and its staff in connection with travel to and from the Remote Area;

  2. Multiple items of Equipment hire by a Customer on the one site will only be charged for one call out fee;

  3. The Customer is responsible at its cost for daily maintenance and care of all Multiple items of Equipment hire by a Customer on the one site will only be fittings and lubrication of all grease points.

 

8 BREACH OF HIRE CONTRACT BY CUSTOMER

If the Customer breaches any significant provision of this Contract and does not remedy the breach within a reasonable period of time (having regard to the breach), or becomes bankrupt, insolvent or ceases business then:

8.1 Atlantic Rentals shall be entitled to:

  1. terminate this Contract; and/or

  2. sue for recovery of all monies owing by the Customer; and/or

  3. repossess the Equipment (and is authorised to enter any premises where the Equipment is located to do so), and any Damage and/or Theft Waiver referred to in clause 6 is immediately invalidated.

8.2 The Customer indemnifies Atlantic Rentals in respect of any damages, costs or loss, to the extent caused or contributed to by the customer resulting from a breach by the Customer of any provision of this Contract.

 

9 DISPUTES

9.1 The Customer must immediately check all Hire Charges, and any disputes in relation to those Hire Charges must be communicated to Atlantic Rentals in writing within 30 days of the Hire Contract date. In the event that no communication is received from the Customer within that 30 day period, the Hire Charges are deemed to be accepted by the Customer.

9.2 If a dispute arises relating to this Contract, the hiring or the use of the Equipment (except in regard to payments due to Atlantic Rentals), the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before litigation.

 

10 EQUIPMENT DATA

Atlantic Rentals’ Equipment may contain on-board devices (each a GPS Device) which enable the Equipment to be connected to the internet and to send commands to and receive certain information from the Equipment, including geolocation data from a global positioning system and other data including but not limited to speed, battery voltage and ignition status of such Equipment.

By hiring any Equipment from Atlantic Rentals, the Customer expressly consents to Atlantic Rentals’ use of the GPS Device on such Equipment during the Hire Period and to Atlantic Rentals collecting, using and retaining information from the GPS Device in accordance with our Privacy Policy, and that Atlantic Rentals is the owner of that data subject to your rights as set out in our Privacy Policy.

 

11 PRIVACY

Atlantic Rentals will comply with the Australian Privacy Principles in all dealings with Customers. A copy of the Atlantic Rentals Privacy Statement is available upon request.

 

12 GOVERNING LAW

12.1 This Hire Contract is a payment claim under the Building and Construction Industry Security of Payment Act 1999 NSW, the Building and Construction Industry Security of Payment Act 2002 VIC, the Building and Construction Industry Payments Act 2004 QLD, the Building and Construction Industry Security of Payment Act 2009 SA, the Construction Contracts Act 2004 WA, the Building and Construction Industry (Security of Payment) Act 2009 ACT, the Building and Construction Industry Security of Payment Act 2009 TAS, and/or the Construction Contracts (Security of Payments) Act 2009 NT.

12.2 Except where Atlantic Rentals in its discretion takes action against the Customer under any of the Building and Construction Industry legislation referred to in this clause, Atlantic Rentals and the Customer agree that this Contract is governed by the law of the state of New South Wales, and the parties submit to the jurisdiction of the courts of that State.

 

13 CONTACTLESS COLLECTION AND RETURN

13.1 Atlantic Rentals may in its discretion, and subject to satisfactory identification of the Customer and its authorised representatives, issue a Personal Identification Number (“PIN”) to an individual authorised representative of the Customer to allow self-collection and self-return of the Equipment by the Customer from and to an Atlantic Rentals branch (“the Branch”). The PIN may be withdrawn by Atlantic Rentals in its discretion at any time. The Customer must comply with all requirements stipulated from time to time by Atlantic Rentals for entry to the Branch using the PIN, including that the Customer must;

  1. follow all directions given by Atlantic Rentals as to the procedure for obtaining access to the Branch;

  2. enter the Branch at its own risk, and any injuries or death or damage to equipment or property that may occur while loading or unloading Equipment are the responsibility of the Customer;

  3. ensure that the main gate of the Branch is closed and locked when leaving the Branch, failing which the Customer will be liable for any theft or attempted theft of equipment from the Branch, or for any damage to equipment at the Branch, or damage to the Branch itself;

  4. consent to being filmed or photographed by CCTV while at and entering and leaving the Branch;

  5. Before it enters the Branch, ensure that it has requested and obtained from Atlantic Rentals any assistance it may require as to the operation and safe use of the Equipment;

  6. at all times keep confidential the PIN, and ensure that the PIN is only used by the person to whom it is issued and that no other persons are given access to the Branch at any time; and

  7. only take into their possession, Equipment detailed on an active Hire Schedule provided to the Customer by Atlantic Rentals.

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